When Yaakov’s family reached Egypt, they were now going to live in a country which raised large quantities of camels, horses, and donkeys, all of them non-kosher mammals that can be commercially milked. Since we know that the avos kept the entire Torah before it was given at Har Sinai, they now had to be concerned about the possibility that non-kosher milk might get mixed into the milk from their goats and sheep. Thus, although the halacha of chalav Yisrael was not created by Chazal until later, the concept must have already existed in this week’s parsha.
Dr. Levy asks me the following: “Friends of ours keep chalav Yisrael, but they will use foods made with non-chalav Yisrael powdered milk. But I know from my professional research that one can purchase powdered mare’s (female horses) and camel’s milk – they are specialty products that command a very high premium. So why is there any difference between using non-chalav Yisrael powdered milk, and non-chalav Yisrael fluid milk?”
The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked, a prohibition called chalav akum, unless a Jew supervised the process. Chalav akum was prohibited because of concern that the milk may have been adulterated with milk of a non-kosher species. As I wrote about extensively in a different article, there are three major approaches to define exactly when the prohibition applies.
The most lenient approach is that of the Pri Chadash (Yoreh Deah 115:15), who understands that one only needs to be concerned about chalav akum when the non-kosher milk is less expensive than the kosher variety, or it is difficult to sell. However, when kosher milk is less expensive, he contends that one does not need to be concerned that the gentile would add more expensive specialty non-kosher milk into regular kosher milk.
On the other extreme is the position of the Chasam Sofer, who maintained that the prohibition has a halachic status of davar shebeminyan, a rabbinic injunction that remains binding even when the reason why the takanah was introduced no longer applies and that the takanah remains in effect until a larger and more authoritative body declares the original sanction invalid (see Beitzah 5a). Since a more authoritative beis din never rescinded the prohibition on unsupervised gentile milk, consuming this milk involves a serious violation. The Chasam Sofer furthermore contends that consuming unsupervised milk violates a Torah prohibition of nedarim since the Jewish people accepted this ruling. All this is true, he contends, even when there is no incentive for the non-Jew to adulterate the product.
And there is an approach in between these two positions, that of Rav Moshe Feinstein and the Chazon Ish (Yoreh Deah 41:4) who contend that, in a place where non-kosher milk commands a higher price than kosher milk, it is still prohibited to use unsupervised milk. However, Rav Moshe understands that the takanah did not specifically require that a Jew attend the milking, but that one is completely certain that the milk has no admixture of non-kosher. However, when one is certain that the kosher milk is unadulterated, halacha considers the milk to be “supervised” and therefore kosher (Shu’t Igros Moshe, Yoreh Deah 1:47).
How can one be certain? The Mishnah recommended the most obvious way: have a Jew nearby who may enter at any moment. Of course, we realize that even this method is not foolproof, but it is as thorough as halacha requires.
Is there another way that one can be certain? Allow me to use my own example to explain Rav Moshe’s approach. Dr. Levy runs laboratory tests on some unsupervised milk and concludes with absolute certainty that in front of him is 100% sheep’s milk. However, no Jew supervised the milking. Is the milk kosher?
According to Rav Moshe’s explanation of the topic, this milk is certainly kosher since we can ascertain its source based on laboratory analysis.
In his earliest published teshuvah on the subject, Rav Moshe explained that when the government issues fines for adulteration of cow’s milk, the fear of this fine is sufficient proof that the milk is kosher. In later teshuvos, he is very clear that other reasons why we can assume that the milk is kosher are sufficient proof, including that normal commercial enterprises assume that standard milk is bovine milk (Shu’t Igros Moshe, Yoreh Deah 1:48, 49).
Although Rav Moshe concludes that where one can rely that the standardly available milk is kosher there is no prohibition of chalav akum, he still rules in a different teshuvah that a chinuch institution must use only chalav Yisrael products even if all the children come from homes that do not use chalav Yisrael exclusively. He contends that part of chinuch is to show children that one follows a stricter standard even when halacha does not necessarily require one.
With this introduction, I would now like to discuss the question raised above: Friends of ours keep chalav Yisrael, but will use foods made from non-chalav Yisrael powdered milk. But I know from my professional work that one can purchase powdered mare’s and camel’s milk – they are considered specialty items. So why is there any difference between using non-chalav Yisrael powdered milk, and non-chalav Yisrael fluid milk?
Those who allow use of non-chalav Yisrael milk powder follow the opinion presented by Rav Tzvi Pesach Frank, Rav of Yerushalayim until his passing fifty years ago, and one of the greatest poskim of his era. Rav Frank assumed that the halacha follows the Chasam Sofer who requires Jewish supervision to permit the non-Jewish milk, and did not accept the heterim of the Pri Chadash, nor that of the Igros Moshe and Chazon Ish. Nevertheless, Rav Frank permitted powdered milk from an unsupervised gentile source for a very interesting reason.
The poskim permit using cheese that is gevinas Yisrael and butter (both these topics I explained in other articles) even when these products were made from unsupervised milk. Why did they permit this? Because the milk of non-kosher species is low in casein, it does not curd, which is the first step in producing cheese. In addition, the milk of non-kosher species is also low in milkfat (also called butterfat or cream), which makes it unprofitable to make butter from non-kosher milk. (I invite those curious about this aspect to read the highly entertaining responsum of the Shu’t Melamed LeHo’il, 2:36:2, on this topic.) For these reasons, even in the days of Chazal one could assume that a gentile would not add milk of non-kosher species when he intends to produce either cheese or butter, and therefore these items were excluded from the prohibition of chalav akum.
May powdered milk be treated like cheese and butter?
Rav Frank notes that there is a significant qualitative difference between cheese and butter, on the one hand, and powdered milk, on the other, in that there is an inherent problem with making cheese and butter from non-kosher milk, whereas one can powder any milk. (This is precisely Dr. Levy’s question I mentioned above.) Thus, one could argue that the leniency that applies to cheese and butter should not apply to milk powder.
However, Rav Frank quotes the Ritva (Avodah Zarah 35b) who pointed out that technically one could make cheese even from non-kosher species, but the cheese yield from these milks is very poor, and when the milk curds, most of it becomes whey. Thus, although it is theoretically possible to make cheese or butter from non-kosher milk, the halacha does not require one to be concerned about this. Rather one may assume that a gentile would not adulterate this milk. It is indeed noteworthy that while researching milk and cheese made the world over, I discovered cheeses made from the milk of cows, sheep, goats, water buffalo, and yak, all of them kosher species. I also found places where milk from several non-kosher mammals, such as donkeys, mares, and camels, are consumed. But I did not find a single populace making cheese from the milk of non-kosher species, verifying the Ritva’s observation that it is simply not worthwhile to make cheese from the milk of non-kosher species.
Rav Frank concludes that what permits the unsupervised milk used in cheese and butter is not that it is impossible to use non-kosher milk for this process but that it is unlikely. Thus, he reasons, although one could powder non-kosher milk, the prohibition of chalav akum was limited to fluid milk and other products available in the days of Chazal which could easily be made from non-kosher milk. Since powdered milk did not exist in the days of Chazal, and since we are certain that standardly available powdered milk is of bovine origin, the prohibition against chalav akum does not apply to milk powder just as it does not apply to butter and cheese.
We should note that the Chazon Ish took strong issue with Rav Frank’s position treating milk powder differently from fluid milk, the Chazon Ish contending that the lenience that applies to cheese and butter applies only because these products inherently are not made from non-kosher milk, a logic that does not apply to milk powder.
Thus, Dr. Levy’s friends who keep chalav Yisrael but use foods made with non-chalav Yisrael powdered milk follow the conclusion of Rav Pesach Frank, whereas those who are strict regarding milk powder follow the Chazon Ish’s approach. In Eretz Yisrael this has become one of the major defining factors for the difference between what is called mehadrin (stricter) kashrus standard, and regular non-mehadrin hechsherim. The regular hechsherim allow use of non-chalav Yisrael milk powder (at this point, always imported from the United States) whereas the mehadrin hechsherim use only pure chalav Yisrael products. The non-chalav Yisrael milk powder is usually noted on the label with the statement, in Hebrew א. חלב נכרי, which stands for avak chalav nachri, or gentile milk powder. (By the way, no Eretz Yisrael hechsher allows use of regular unsupervised fluid milk as kosher; all hechsherim, both mehadrin and non-mehadrin, have accepted the position of the Chasam Sofer.)
Now that we are all a bit more educated about the topic, we might want to read up on the topics of chalav Yisrael butter and cheese.